Joy Dove v HM Assistant Coroner for Teesside and Hartlepool

Hearing dates: 31 January and 1 February 2023

APPROVED JUDGMENT

Introduction

Joy Dove is the Appellant and the mother of Jodey Whiting, who died on 21 February 2017 as the result of an overdose of prescription medicine. Jodey was 42 years old when she died. On 24 May 2017, the Assistant Coroner for Teesside and Hartlepool (the First Respondent to this appeal and referred to in this judgment as the “Coroner”) held an inquest into her death which recorded her death as suicide.

With the authority of the Attorney General by way of fiat, on 21 December 2020 Mrs Dove applied for an order under s 13 of the Coroners Act 1988 quashing the Coroner's determination and directing a new inquest. On 17 September 2021 the Divisional Court (Warby LJ, Farbey J and HHJ Teague KC, the Chief Coroner) refused that application. Mrs Dove now appeals to this Court. I granted permission to appeal on the papers.

The scope of the appeal before this Court is much narrower than the case advanced before the Divisional Court. Mrs Dove, who is the Appellant, now makes no criticism of the way the first inquest was conducted. She advances two grounds of appeal, both of them contingent on the fresh evidence in this case, received since that first inquest took place. The grounds of appeal are:

i) First, that the Divisional Court was wrong to conclude that a fresh Jamieson inquest was not necessary or desirable in light of the fresh evidence relating to the abrupt cessation of Jodey's benefits by the Department of Work and Pensions (the “Department”) and the likely effect of that on Jodey's mental health; and

ii) Secondly and alternatively, that the Divisional Court was wrong to conclude that a fresh Middleton inquest was not necessary or desirable in the light of arguable breaches of the Article 2 operational duty owed to Jodey by the Department.

In this Court, Mrs Dove was represented by Mr Hyam KC, who did not appear below, and Mr Nicholls who represented her below. The Coroner was present and represented by Mr Hough KC, who appeared below and adopted a neutral approach, seeking only to assist the Court. Jodey's GP, Dr Rahman, was named as the second Respondent, and was present and represented in this Court by Mr Fernando, but he did not wish to make any submissions and remained neutral on the appeal. The Secretary of State is the Interested Party, being ultimately responsible for the Department; she was present and represented on this appeal by Mr Dixey who remains neutral on the first ground but resisted the appeal on the second ground. I am grateful to all counsel and their legal teams for the care and conspicuous expertise with which this appeal was presented.

This case concerns the sad and premature death of a much-loved daughter, mother and grandmother. Mrs Dove and all her family have my deepest sympathies for their loss.

Law

Application for a fresh inquest

Section 13(1) of the Coroners Act 1988 provides:

“13. – Order to hold investigation

(1) This section applies where, on an application or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either –

…

(b) Where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may be, another investigation) should be held.”

If such an application is successful, the High Court may quash the inquisition and any determination or finding made by the first inquest and order a fresh inquest to take place (s 13(2)).

In R (Sutovic) v HM Coroner Northern District of Greater London [2006] EWHC 1095 the Court (Moses LJ and Beatson J) discussed the ambit of the power to order a fresh inquest in s 13(1) and held:

“54. The power in section 13(1)(b) [is] stated in very broad terms. The necessity or desirability of another inquest may arise by reason of one of the listed matters “or otherwise”. Notwithstanding the width of the statutory words, its exercise by courts shows that the factors of central importance are an assessment of the possibility (as opposed to the probability) of a different verdict, the number of shortcomings in the original inquest, and the need to investigate matters raised by new evidence which had not been investigated at the inquest …”

Further, the Court held that:

“98. … the function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires. …”

In Attorney-General v HM Coroner of South Yorkshire (West) [2012] EWHC 3783 (Admin) (the “ Hillsborough case”) the Divisional Court (Lord Judge CJ, Burnett J and HHJ Peter Thornton QC) gave the following guidance on the approach to s 13:

“10. The single question is whether the interests of justice make a further inquest either necessary or desirable. The interests of justice, as they arise in the coronial process, are undefined, but, dealing with it broadly, it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered. The decision is not based on problems with process, unless the process adopted at the original inquest has caused justice to be diverted or the inquiry to be insufficient. What is more, it is not a pre-condition to an order for a further inquest that this court should anticipate that a different verdict to the one already reached will be returned. If a different verdict is likely, then the interests of justice will make it necessary for a fresh inquest to be ordered, but even when significant fresh evidence may serve to confirm the correctness of the earlier verdict, it may sometimes nevertheless be desirable for the full extent of the evidence which tends to confirm the correctness of the verdict to be publicly revealed.”

Purpose and Scope of Inquest

Section 5 of the Coroners and Justice Act 2009 provides that the purpose of an inquest is to ascertain the answers to the following questions: (a) who the deceased was; (b) how, when and where the deceased came by their death; and (c) the particulars (if any) required under other legislation to be registered concerning the death. Section 5(3) prohibits a coroner from expressing any opinion on matters other than the section 5 questions, subject only to para 7 of Schedule 5 to the 2009 Act which permits a coroner to make a report to an appropriate person known as a “Preventing Future Deaths” or “PFD” report. The inquest must not, by s 10(2) of the 2009 Act, appear to determine any question of criminal liability of a named person or any question of civil liability.

The scope of an inquest will depend on whether or not Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) is engaged. The scope in cases where Article 2 is not engaged was examined in R v HM Coroner for North Humberside, ex p Jamieson [1995] QB 1 which considered the predecessor provision to s 5 of the 2009 Act. The purpose of a Jamieson inquest is to answer the factual questions posed in the statute. The “how” question is directed only to the means by which the deceased came by his or her death, it does not encompass the wider circumstances of death. However, inquests which engage Article 2 are required to answer the “how” question more broadly, to address not only by what means, but also in what circumstances the deceased came by their death. That expansion is necessary in order for the state to comply with its investigative obligation under Article 2: R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 and R (Hurst) v London Northern District Coroner [2007] 2 AC 189. The approach in Middleton and Hurst was given statutory effect by s 5(2) of the 2009 Act.

Coroners are invited to follow the three-step process set out in the Chief Coroner's Guidance No 17 on “Conclusions: Short Form and Narrative” published on 30 January 2015 and revised on 14 January 2016, see [18]. That process involves: (i) making findings of fact based on the evidence, to be stated in open court but not written on the record of inquest; (ii) distilling from the findings of fact ‘how’ the deceased came by their death, which will normally be a brief one sentence summary taken from the findings of fact at the first stage, in words chosen by coroners which should be brief, neutral and clear; and (iii) recording the conclusion which must flow from and be consistent with stages (i) and (ii), to be inserted into box 4 of the record of inquest. Where the inquest is an Article 2 Middleton inquest, the second stage is expanded to indicate “how and in what circumstances” the...